BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ELECTRIC ENERGY, )
INCORPORATED, )
)
Petitioner, )
) PCB No. 2006-065
v. ) (CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Respondent. )
NOTICE
To: Dorothy Gunn, Clerk James T. Harrington
Illinois Pollution Control Board David L. Rieser
100 West Randolph Street McGuireWoods, LLP
Suite 11-500 77 West Wacker, Suite 4100
Chicago, Illinois 60601 Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
James R. Thompson Center,
Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today electronically filed with the Office of
the Clerk of the Illinois Pollution Control Board the
MOTION FOR LEAVE TO FILE
SURREPLY and SURREPLY
of the Respondent, Illinois Environmental Protection
Agency, a copy of which is herewith served upon the assigned Hearing Officer and the
attorneys for the Petitioner.
Respectfully submitted by,
_____/s/______________
Robb H. Layman
Assistant Counsel
Dated: December 15, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 524-9137
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ELECTRIC ENERGY, )
INCORPORATED, )
)
Petitioner, )
) PCB No. 2006-065
v. ) (CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Respondent. )
MOTION FOR LEAVE TO FILE SURREPLY
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA” or “Respondent”), by and through its attorneys, and moves the
Illinois Pollution Control Board (“Board”) for leave to file a Surreply to the Petitioner’s,
ELECTRIC ENERGY, INCORPORATED (hereinafter “Electric Energy” or
“Petitioner”), recent responsive pleading regarding the issue of stay. In support of this
Motion, the Respondent states as follows:
1. On November 3, 2005, attorneys for the Petitioner filed this appeal with
the Board challenging certain permit conditions contained within the Clean Air Act
Permit Program (“CAAPP”) permit issued by the Illinois EPA on September 29, 2005.
The Illinois EPA received an electronic version of the appeal on the same date. Formal
notice of the appeal was served upon the Illinois EPA on November 4, 2005.
2. As part of its Petition, Electric Energy sought a stay of the effectiveness of
the entire CAAPP permit or, alternatively, a stay of the contested conditions of the
CAAPP permit in the event that the Board denies its request for a blanket stay.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
3. On November 18, 2005, the Illinois EPA responded to Electric Energy’s
request for stay.
1
4. On November 30, 2005, the Petitioner filed a responsive pleading and an
attached Motion for Leave with the Board. The Illinois EPA received service of the
filing on December 1, 2005.
5. In accordance with the Board’s procedural requirements, the Illinois EPA
possesses no formal right to file additional responsive pleadings except as may permitted
by the Board or a hearing officer to prevent material prejudice. Any such reply or
surreply must be filed with the Board within 14 days after service of the response.
See,
35 Ill. Adm. Code 101.500(e).
6. In its November 30
th
pleading, Petitioner addressed several arguments
raised by the Illinois EPA in opposition to the applicability of the Illinois Administrative
Procedure Act (“APA”),
5 ILCS 100/10-65(b)(2004)
and the Board’s granting of a
blanket stay of the entire CAAPP permit pursuant to its discretionary stay authority. The
Illinois EPA asserts that Petitioner’s pleading contains improper, or perhaps inadvertent,
misstatements concerning the Respondent’s arguments. This filing is necessary to avoid
undue prejudice arising from those misstatements. The Board has previously held that a
surreply is an appropriate filing when brought to correct misstatements contained in
briefing documents.
See, Illinois Ayers Oil Company v. Illinois EPA, PCB No. 03-214,
UST Appeal (August 5, 2004).
1
In addition to the filing of Appearances on November 18, 2005, the Illinois EPA filed a document
entitled “Motion in Partial Opposition To, And Partial Support Of, Petitioner’s Request for Stay.” In
responsive pleadings later filed by petitioners in parallel CAAPP proceedings, it was noted that the Illinois
EPA’s filing did not request relief beyond that which was already being sought, and therefore the document
was merely a responsive pleading. In retrospect, the Illinois EPA acknowledges that the caption of its
“Motion” document was not artfully stated and should have instead been identified as a Response. To this
end, and hopefully without adding to the confusion, the Illinois EPA is identifying this pleading as a
Surreply to Petitioner’s most recent responsive filing.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
WHEREFORE, the Illinois EPA respectfully seeks leave from the Board to file
the attached Surreply in the above-captioned matter.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
_____/s/______________
Robb H. Layman
Assistant Counsel
Dated: December 15, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 524-9137
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ELECTRIC ENERGY, )
INCORPORATED, )
)
Petitioner, )
) PCB No. 2006-065
v. ) (CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Respondent. )
SURREPLY
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys, and files this Surreply to correct
several misstatements expressed by the Petitioner, ELECTRIC ENERGY,
INCORPORATED (hereinafter “Electric Energy” or “Petitioner”), in its responsive
pleading
1
filed with the Board on November 30, 2005.
ARGUMENT
In its Reply, Petitioner challenges assertions by the Illinois EPA that were made
with respect to the applicability of the Illinois Administrative Procedure Act (“APA”),
5
ILCS 100/10-65(b)(2004),
and the exercise of the Board’s discretionary stay authority in
Clean Air Act Permit Program (“CAAPP”) appeals. In doing so, Petitioner presents
certain arguments that misstate the Illinois EPA’s arguments or applicable law.
1
As addressed in the accompanying Motion to this filing, the Illinois EPA’s prior captioning of pleadings
was less than artful and, for the reasons explained therein, this responsive pleading is being identified as a
Surreply. The Illinois EPA will refer to the Petitioner’s most recent November 30
th
filing in the general
manner it was captioned (i.e., “Petitioner’s Reply”). Reference to the Illinois EPA’s earlier Motion in
Partial Opposition To, And Partial Support Of, Petitioner’s Request For Stay, will be abbreviated herein as
“Respondent’s Motion.”
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
2
I. The CAAPP program’s severability provision can be construed as an
exemption to the APA’s automatic stay requirements.
Petitioner challenges the Illinois EPA’s assertion that the severability provision of
the Illinois CAAPP, codified at 415 ILCS 5/39.5(7)(i) of the Environmental Protection
Act (“Act”), effectively exempts CAAPP permits from the automatic stay requirement of
the Illinois APA. According to Petitioner, the existence of the Act’s exemption of the
APA in the context of administrative citations does not support the Illinois EPA’s
position but, rather, “proved the opposite that the legislature intended and believed
clearly the APA applied to all proceedings under the [Act] unless specifically exempted.”
See, Petitioner’s Reply at page 2.
Petitioner reasons that the General Assembly did not
“expressly” exempt CAAPP permits from the APA and, as such, the severability clause
only applies to circumstances in which “some terms of a permit are successfully
challenged so that other unrelated terms may remain in force.”
Id.
Petitioner’s argument does not accurately depict applicable law or the Illinois
EPA’s arguments concerning the proper interpretation of the CAAPP’s severability
clause. The Illinois EPA cited the Act’s administrative citation provisions as one
example of the legislature’s intent for exempting the APA from certain provisions of the
Act. It is not disputed that the General Assembly’s intentions in Section 31.1(e) of the
Act are expressly known. The thrust of the Illinois EPA’s argument with respect to
Section 39.5(7)(i), however, rests with its implicit meaning, as imparted by the language
of the provision.
See, Respondent’s Motion at pages 5-6.
Petitioner’s argument
concerning the lack of explicitness is therefore not fatal. A statutory exemption can be
“inferred by clear implication,”
Holda v. County of Kane, 410 N.E.2d 552 (Ill. App. 2
nd
Dist., 1980).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
3
The Illinois EPA admits that the CAAPP severability provision has something in
common with contractual severability clauses and it clearly provides a “saving”
mechanism for uncontested permit conditions. However, while Section 39.5(7)(i) assures
that the remaining portions of a permit remain viable when and if challenged conditions
are struck down, the Illinois EPA maintains that the provision’s language also achieves
the practical effect of foreclosing the APA’s automatic stay provision. It does so by
contemplating a continuation of the uncontested permitting requirements
contemporaneous with the permit appeal.
The wording of the statutory language in Section 39.5(7)(i) does not require that
its force and effect be delayed until the legal challenge is exhausted and a final decision is
rendered. Rather, the language emphasizes the “continued validity” of the uncontested
permit conditions, implicitly revealing that the non-challenged portion of the permit
should remain in effect during the appeal period itself, not simply at its conclusion.
See,
Respondent’s Motion at pages 5-6.
If the uncontested provisions are somehow left in
abeyance until the end of the appeal process, then the “continued validity” of the
uncontested provisions could never truly be assured.
II. The issue of the permit’s “effective date” is irrelevant to the Board’s
exercise of discretionary stay authority.
In a separate argument, Petitioner observes that one of the permit conditions
appealed in this proceeding concerns the permit’s effective date. According to Petitioner,
a challenge to the permit’s effective date is tantamount to a stay of all other permit
conditions, seemingly because none of the permit conditions can be said to become
effective until the issue surrounding the effective date is first resolved.
See, Petitioner’s
Reply at page 2-3.
Noting that the Respondent has agreed to a limited stay pertaining
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
4
only to the appeal’s contested conditions, Petitioners urges the Board to stay the CAAPP
permit in its entirety on the basis of the challenged effective date.
Id.
Petitioner’s argument is gimmickry. While the Illinois EPA has evidenced its
acceptance of a limited stay of the permit’s contested conditions, it has opposed a blanket
stay of all of the permit’s terms. Construing an isolated issue that was raised on appeal so
as to affect, or run to, the entire permit does not alter the Illinois EPA’s opposition to a
blanket stay.
More significantly, the argument misstates the nature of the issue raised in the
Petitioner’s appeal. The bailiwick of Petitioner’s challenge regarding the permit’s
effective date involves the timing of the permit’s effectiveness relative to the date of
permit issuance. Specifically, Petitioner has objected to the permit being deemed
effective on September 29, 2005, because a signed version of the permit was not received
in the mail until October 4, 2005.
See, Petition at pages 5-6.
Petitioner appears to be
particularly concerned with the implications posed by the permit being issued in late
September, as it would purportedly cause hardship with respect to the permit’s quarterly
record-keeping and/or reporting requirements.
Id.
The narrow emphasis of this issue is
placed on whether the permit became effective on the date of the Illinois EPA’s issuance
or, alternatively, on the date that the Petitioner received its permit in the mail a few days
later. This issue is wholly distinct from the discussion that is accompanying the merits
of the stay issue, the latter of which is addressing a permit’s effectiveness as it relates to
the pendancy of this appeal.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
5
CONCLUSION
The Illinois EPA urges the Board to consider the afore-mentioned arguments in its
deliberations of the stay issue and to ultimately reject a blanket stay of the CAAPP
permit.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
_____/s/______________
Robb H. Layman
Assistant Counsel
Dated: December 15, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 524-9137
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of December 2005, I did send, by electronic
mail, the following instruments entitled
MOTION FOR LEAVE TO FILE
SURREPLY and SURREPLY
to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
and a true and correct copy of the same foregoing instrument, by First Class Mail with
postage thereon fully paid and deposited into the possession of the United States Postal
Service, to:
Bradley P. Halloran James T. Harrington
Hearing Officer David L. Rieser
James R. Thompson Center McGuireWoods, LLP
Suite 11-500 77 West Wacker, Suite 4100
100 West Randolph Street Chicago, Illinois 60601
Chicago, Illinois 60601
_____/s/_________________
Robb H. Layman
Assistant Counsel
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
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